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2005 Supreme(Bom) 1652
IN THE HIGH COURT OF BOMBAY
State of Maharashtra
VERSUS
Abu Salem Abdul Kayyum Ansari
Decided no: DECEMBER 2, 2005
Headnote:CONSTITUTION OF INDIA, 1950 - Article 227 Restricting investigation by two designated officers Contention Such restriction not permissible Held Where investigation is commanded to few officers, Court has no say in number of such investigation officers. Looking to the merits of the order, Advocate contended that the investigation of Bomb-blast case was originally done by only two officers and now when only one accused is involved, there is no necessity of entrusting the investigation to five officers. Court cannot decide this aspect of the matter. If the investigation is entrusted to five officers, Court cannot say it is improper nor it can restrict the number of Investigating Officers. The impugned order was not called for. In the circumstances, that order is set aside. The petition stands disposed of accordingly. Prayer for stay is rejected. Certified copy expedited.
CONSTITUTION OF INDIA, 1950 - Article 227 Writ jurisdiction of High Court. Any judgment, order or sentence including an interlocutory order of a Designated Court passed under Section 19 of TADA Act not affects powers of High Court under Articles 226 and 227 of Constitution.
Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 19 - Constitution of India, Article 227 - Order of Designated Court. - If investigation is entrusted to five officers to interrogate accused then Court cannot restrict number of I.Os. to two officers out of five officers.
Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 19 - Constitution of India, Article 227 - Restricting investigation - Challenged - Only Supreme Court can issue direction for such matter to be heard - Held - Bar under Section 19 of TADA Act does not effect powers of Court when petition is filed - Such objection cannot be upheld. - According to Advocate, a petition can lie only with the Supreme Court from any judgment, sentence or order and under sub-section (2) of Section 19 no appeal or revision shall lie to any Court from any judgment sentence, or order including an interlocutory order of a Designated Court. Counsel, there- fore, contended that in view of this provision, the petition is not maintainable.
As against this, the Public Prosecutor, relied upon the judgment of this Court reported in Mohamad Ahmed Yasin Mansuri v. State of Maharashtra, 1996 (Supp) Bom CR 501 : 1994 CriLJ 1854, wherein in para 30 this Court has clearly held that bar under Section 19 of the TADA Act, reproduced above, does not affect the powers of the High Court under Articles 226 and 227 of the Constitution of India. Counsel appearing for the respondent/accused contended that this judgment has set aside by the Supreme Court in State through CBI v. Dawood Ibrahim Kaskar and others, 2000 (10) SCC 438. However, the Public Prosecutor pointed out that only certain observations of this Court were found unwarranted or which were found to be made too sweepingly.
Looking to the merits of the order, Advocate contended that the investigation of Bomb-blast case was originally done by only two officers and now when only one accused is involved, there is no necessity of entrusting the investigation to five officers. Court cannot decide this aspect of the matter. If the investigation is entrusted to five officers, Court cannot say it is improper nor it can restrict the number of Investigating Officers. The impugned order was not called for. In the circumstances, that order is set aside. The petition stands disposed of accordingly. Prayer for stay is rejected. Certified copy expedited.
( 2 ) THE present writ petition is only directed against the following part of the order. "considering the grievance of the accused Investigating officer is directed that he himself and/or P. I. Shri Deshmukh should interrogate the accused and no other officer should not interrogate the accused. "according to the learned Public Prosecutor, this order was not called for. Five officers, according to him, are entrusted with the job of interrogating the present respondent/accused and restricting the investigation to two officers out of five is not permissible.
( 3 ) AT this juncture, Advocate Mr. Siddiqui, appearing for the respondent/accused, firstly, raised an objection about maintainability of the petition. He contended that the investigating agency has applied to the TADA Special Court for modification of the order dated 29. 11. 2005. When the learned Public Prosecutor was confronted with this situation, he made a statement that since they have filed this petition, they are not pressing their application for modification filed before the TADA Court.
( 4 ) ADVOCATE Mr. Siddiqui, appearing of the respondent/accused, raised 2nd objection to the maintainability on the basis of section 19 of the TADA Act, 1987. Section 19 of the TADA Act, 1987 reads as under :-"19. Appeal.- (1) Notwithstanding anything contained in the Code, an appeal shall lie as a matter of right from any judgment, sentence or order, not being an interlocutory order, of a Designated Court to the Supreme court both on facts and on law. (2) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, sentence or order including an interlocutory order of a Designated Court. (3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from : provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days. "according to Advocate Mr. Siddiqui, a petition can lie only with the Supreme court from any judgment, sentence or order and under sub-section (2) of section 19 no appeal or revision shall lie to any Court from any judgment sentence, or order including an interlocutory order of a Designated Court. Mr. Siddiqui, therefore, contended that in view of this provision, the petition is not maintainable.
( 5 ) AS against this, the learned Public prosecutor, relied upon the judgment of this court reported in 1996 (Supp.) Bom. C. R. 501 : 1994 Cri. L. J. 1854 (Mohamad Ahmed yasin Mansuri v. State of Maharashtra), wherein in para 30 this Court has clearly held that bar under section 19 of the TADA act, reproduced above, does not affect the powers of the High Court under Articles 226 and 227 of the Constitution of India. Mr. Siddiqui, appearing for the respondent/accused contended that this judg
